Judge Julie Spector of the King County Superior Court has released a thoughtful, powerful ruling this morning on Washington Families Standing Together‘s the motion for a Temporary Restraining Order to prevent Referendum 71 from being placed on the November ballot.

This will take some explaining, so bear with me, but in summary:

  • WAFST was correct on the fact that unsigned or fraudulently signed petitions should be discarded.
  • WAFST was correct on the fact that petition signers must be registered voters before signing.
  • A legal question remains that is out of this judge’s purview: does the Secretary of State have the right to knowingly accept signatures and petitions that are out of compliance with the law?

    That last question will be raised in Thurston County Court during the built-in 5-day window for challenges after certification.  Secretary of State Reed is expected to certify Referendum 71 today.  At issue is the validity of 36,000 signatures, enough to disqualify the referendum.

    A closer look at the text of Judge Spector’s ruling is below the fold.

    UPDATE: The Secretary of State has certified the referendum.  Onward to Thurston County Superior Court!Judge Spector agreed to the facts that WAFST presented, moving into the “facts” file what formerly were allegations.  For example, Page 3, lines 18-21:

    The Secretary of State specifically instructed staff to accept signatures regardless of voter registration date.  Hamilton Decl., para 5.  As a result, a number of signatures were accepted from voters who were not registered at the time they signed the petitions.  Some had registered after the R-71 petitions were filed.

    And again on Page 6, lines 3-4:

    The Court recognizes the concerns raised by the plaintiffs regarding the validity of a significant number of petitions and signatures in this case.

    After agreeing to the facts, Judge Spector went on to look at what the SOS did in light of the law.  Page 6, lines 5-10:

    The Secretary of State concedes that he instructed his staff to accept signatures of voters who were not registered when they signed the petition.  The court notes that the plain language of the Washington State Constitution and the Revised Code of Washington requires voters to be registered before signing.  While it may be common practice for individuals to register simultaneously with signing referendum petitions, and it may even be good policy, that does not mean that the practice is in accordance with Washington law.

    With respect to the petitions with unsigned or fraudulently signed circulator declarations and the WA Attorney General’s 2006 opinion that the declaration need only be printed on the petition but not signed, the Court found error in the SOS’s interpretation of the law.  Page 7, lines 2-3 and 7-20:

    Based on the statute’s plain language and the legislative history, this essentially renders the declaration requirement meaningless….

    Further, neither the Secretary of State nor PMW/Intervenor has addressed the plaintiffs allegations of fraud whereby individuals were allegedly deceived into signing the petitions.  Specifically, there are allegations taht signature-gatherers told some individuals that the referendum would protect domestic partnerships when in fact just the opposite was true. … In additions, the highlights at the top of the petitions contain apparent falsehoods, hyperbole, and unsubstantiated claims.

    The required signature-gatherer’s declaration swears that the individuals who signed the petition did so “knowingly”.  It is unclear whether a signature-gatherer can swear that an individual signer has signed the petition “knowingly” when the signature-gatherer has allegedly misrepresented the contents of the petition.  Neither the Secretary of State nor PMW/Intervenor has answered this question.

    So the Court agrees to the facts as presented by Washington Families Standing Together.  But there’s a hitch in what, if anything, Judge Spector could do about them.  Look at Page 8, line 5:

    In summary, under Washington case law it is unclear whether there are any limits to the Secretary of State’s discretion as long as he has chosen to accept petitions rather than reject them.

    What this means is that the law says that the SOS can’t reject signatures for the wrong reason, but is less clear on the question of the SOS accepting signatures mistakenly, or for the wrong reasons.  So the facts of the case are clear.  But what remains unclear is whether the Secretary of State has the discretionary power to knowingly accept signatures or petitions that are not in compliance with the law.  The next step is to take that question to Thurston County Superior Court this week after the petitions are (erroneously) certified.

    Cross-posted at Washblog.

    Referendum 71 voters will be asked to approve or reject the domestic partnership law.


    REFERENDUM 71

    Ballot Title

    Statement of Subject: The legislature passed Engrossed Second Substitute Senate Bill 5688 concerning rights and responsibilities of state-registered domestic partners [and voters have filed a sufficient referendum petition on this bill].

    Concise Description: This bill would expand the rights, responsibilities, and obligations accorded state-registered same-sex and senior domestic partners to be equivalent to those of married spouses, except that a domestic partnership is not a marriage.

    Should this bill be:

    Approved ___

    Rejected ___

    Ballot Measure Summary

    Same-sex couples, or any couple that includes one person age sixty-two or older, may register as a domestic partnership with the state. Registered domestic partnerships are not marriages, and marriage is prohibited except between one man and one woman. This bill would expand the rights, responsibilities, and obligations of registered domestic partners and their families to include all rights, responsibilities, and obligations granted by or imposed by state law on married couples and their families.

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